Preliminary Injunction Motion

Transcription

1 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 1 of 34 United States District Court District of Columbia The Christian Civic League of Maine, Inc. 70 Sewall Street Augusta, ME 04330, Plaintiff, v. Cause No. Federal Election Commission, 999 E Street, NW Washington, DC 20463, Defendant. Preliminary Injunction Motion Plaintiff the Christian Civic League of Maine, Inc. ("CCL") moves for a preliminary injunction. Fed. R. Civ. P. 65. CCL fies concurrently its Verifed Complaint for Declaratory and Injunctive Relief and Preliminary Injunction Motion. As set out fully in the Complaint and Memorandum, CCL complains against the prohibition (codified at 2 V.S.C. 441b(b)(2)) on corporate disbursements for "electioneering communications" (defined at 2 U.S.c. 434(f)(3)(A)(i)) as applied to (a) electioneering communications by CCL that constitute grassroots lobbying and (b) the electioneering communications by CCL contained in Exhibit A of the Complaint. CCL submits that it has established probable success on the merits, it wil be irreparably harmed, a preliminary injunction wil not substantially harm Defendant Federal Election Motion for PreL. Inj.

2 '"" Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 2 of 34 Commission ("FEC"), a preliminary injunction is in the public interest, and there is no adequate remedy at law. Pursuant to Local Rule of Civil Procedure 7(m), CCL has conferred with legal counsel for the FEC regarding whether the electioneering communication prohibition should be preliminarily enjoined as so applied. The response of the FEC has been separately submitted to the Court in the Notice of Consultation on Motions With Opposing Counsel, which conveniently consolidates opposing counsel's positions on all motions being fied contemporaneously with this one. Because a preliminary injunction presents no monetary risks to the FEC, CCL requests that bond be set at $1. Fed. R. Civ. P. 65(c). For the reasons stated in the accompanying Memorandum, CCL requests that the Court grant its preliminary injunction motion and preliminarily enjoin the FEC from enforcing the prohibition on coiporate expenditures for electioneering communications at Section 203 of the Biparisan Campaign Reform Act of2002 ("BCRA"), codified at 2 V.S.c. 441b(b)(2) of the Federal Election Campaign Act ("FECA"), as applied to (a) electioneering communications by CCL that constitute grassroots lobbying and (b) the electioneering communications by CCL contained in Exhibit A of the Complaint, until a final hearing on the merits. Motion for PreL. Inj. 2

3 ~... Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 3 of 34 Dated ~g April 3, 2006 M. Miler Baker, D.C. Bar # Michael S. Nadel, D.C. Bar # McDERMOTT WILL & EMERY LLP 600 Thirteenth Street, NW Washington, D.C / telephone 202/ facsimile Local Counsel for Plaintif Respectfully submitted, ~'lr J es Bopp, Jr. Bopp, COLESON & BOSTROM 1 South Sixth Street Terre Haute, IN / telephone 812/ facsimile Lead Counsel for Plaintif *Pro Hac Vice Motionfiled Apri/3, 2006 '.:,' ~,?'. Motion for PreL. Inj. 3

4 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 4 of 34 United States District Court District of Columbia The Christian Civic League of Maine, Inc. 70 Sewall Street Augusta, ME 04330, Plaintiff, v. Cause No. Federal Election Commission, 999 E Street, NW Washington, DC 20463, Defendant. Memorandum In Support of Preliminary Injunction Motion M. Miller Baker, D.C. Bar # McDERMOTT WILL & EMERY LLP 600 Thirteenth Street, NW Washington, D.C / telephone 202/ facsimile Local Counsel for Plaintif James Bopp, Jr. * Bopp, COLESON & BOSTROM 1 South Sixth Street Terre Haute, IN / telephone 812/ facsimile Lead Counsel for Plaintif *Pro Hac Vice Motionfiled March 31, :-. ~' '.

5 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 5 of 34 Table of Contents Introduction... 1 Facts Argument CCL Has a Substantial Likelihood of Success on the Merits A. An Exception for Genuine Grassroots Lobbying Is Constitutionally Required The Constitution Specifically Protects Grassroots Lobbying Grassroots Lobbying Differs From Electioneering a. There Is a Distinction Between Grassroots Lobbying and Electioneering b. Genuine Grassroots Lobbying Is Not Sham Issue Advertising c. Grassroots Lobbying Does Not Implicate McConnell's Concerns d. If There Are Residual Concerns about V sing Corporate General Treasury Funds for Grassroots Lobbying, a Segregated Bank Account Could Be V sed CCL's Ad Is Not Electioneering a. CCL's Ad Is Not the "Functional Equivalent of Express Advocacy."..23 II. CCL Wil Suffer Irreparable Injury Without the Injunction Il. The Injunction Wil Not Substantially Injure Others IV. The Injunction Furthers the Public Interest Conclusion ~d'~ Preliminary Injunction Motion

6 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 6 of 34 Introduction This case is about drawing a careful line to protect both the American system of participatory democracy - guaranteed in large part by the First Amendment protections of speech, association, and petitioning government - and the integrity of our federal election campaigns. McConnell v. FEC, 540 V.S. 93 (2003), involved afacial challenge to the Bipartisan Campaign Reform Act of 2002 ("BCRA"). In McConnell, the Supreme Court expressly employed a facial overbreadth analysis to uphold BCRA's prohibition on using corporate funds for "electioneering communications." Subsequently, the Supreme Court in Wisconsin Right to Life, Inc. v. FEC, 126 S.Ct (2006), explained that as-applied challenges to the electioneering communication prohibition were not resolved or precluded by its holding in McConnell. 126 S.Ct. at This is such an as-applied challenge. It challenges as unconstitutional the prohibition on using corporate funds for "electioneering communications" (hereinafter "the prohibition") contained in 203 of the BCRA, Pub. L. No , 116 Stat. 81,91-92, and codified at 2 V.S.C. 44lb(b)(2), as applied to grass roots lobbying and specifically as applied to the broadcast advertisement attached to the Complaint as Exhibit A. Grassroots lobbying is one of the most important and effective ways citizens petition the government. It is essential to any government "of the people, by the people, and for the people." Abraham Lincoln, Gettysburg Address. As shown below, ordinarily (a) incorporated groups are free to use corporate funds for grassroots lobbying and (b) limits on contributions in the grassroots lobbying context are not constitutionally warranted. The need for, and importance of, participatory democracy does not diminish in importance in the days before elections. Rather, Preliminary Injunction Motion 1

7 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 7 of 34 this case demonstrates that the people's interest may increase at such times as legislators hurr to finish important work before recessing at the fall election time. In considering the electioneering communications prohibition, Congress and the Supreme Court, in McConnell, wrestled with the need to distinguish what the Supreme Court called "tre" or "genuine" issue ads from what it called "bogus," "sham," or "so-called" issue ads. The Court focused on "sham" ads in upholding the broad-brush prohibition against facial attack. This case demonstrates that a more discerning line can, and should, be drawn in this as-applied challenge. The facts of this case demonstrate that the ad at issue in this case are not the sort of campaign- :~'. speech ads that Congress and the Cour in McConnell considered "sham." Consequently, as applied to bona fide grassroots lobbying and the ad at issue herein, the prohibition is not narrowly tailored to a compellng governmental interest. Facts The facts of this case are set out in the Verifed Complaintfor Declaratory and Injunctive Reliefand verified there by the long-time executive director of the Christian Civic League of Maine, Inc. ("CCL"). They are restated here for the Court's convenience. As presently applicable, '''electioneering communication' means any broadcast, cable, or satellite communication which... refers to a clearly identified candidate for Federal offce (and) is made within days before a general... election for the office sought by the candidate; or days before a primary... election... for the offce sought by the candidate; and... is targeted to the relevant electorate." 2 V.S.C. 434(f)(3)(A)(i). See also 11 C.F.R (definition of "electioneering communication"). i';':;: ; - ;l ~~'.~ The prohibition provides that "(i)t is unlawful... for any corporation whatever... to make Preliminary Injunction Motion 2

8 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 8 of 34 a contribution or expenditue in connection with any (Federal) election.... For purposes of this section..., the term 'contribution or expenditure' includes... any applicable electioneering communication...." 2 V.S.C b(a)-(b); see also 11 C.F.R and (regulatory ban on corporate funding of electioneering communications). CCL is a nonprofit, non stock, Maine ideological corporation recognized by the Internal Revenue Service as tax exempt under 501 (c)( 4) of the Internal Revenue Code. Complaint ii 20. CCL does not qualify for any exception permitting it to pay for electioneering communications from corporate funds because (a) it is not a "qualified nonprofit corporation" (QNC) within the definition of 11 C.F.R so as to qualify for the exception found at 11 C.F.R (b )(2) to the electioneering communication prohibition and (b) its advertisement is "targeted" so that it does not fit the exception for 501 (c)(4) organizations as described in 2 U.S.C. 441 b(c)(2). 2 V.S.C. 441b(c)(6)(A). Complaint ii 22. Defendant FEC is the government agency charged with enforcing the relevant provision of the Federal Election Campaign Act ("FECA"), as amended by the BCRA. Complaint ii 21. The FEC considered creating an exception to this prohibition in its regulations implementing BCRA for grassroots lobbying broadcasts but decided it was beyond the exception-making authority granted it by Congress to do so. Complaint ii 7 (citing 67 Fed. Reg , ). This case challenges the prohibition as applied to grassroots lobbying on the facts of this case, which involves a broadcast advertisement (a tre and accurate transcript of the current version of the ad is attached to the Complaint as Exhibit A) that is paid for by CCL and that encourages Maine listeners to contact their u.s. Senators (Sen. Olympia Snowe and Sen. Susan ; ~"" ~:~ : ~~(~ " (,;,' Collins) and to ask them to support the federal Marriage Protection Amendment (S.J. Res. 1), Preliminary Injunction Motion 3

9 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 9 of 34 including a vote for cloture on debate for the Amendment and/or other legislative action which wil occur during the electioneering communication blackout periods this summer and fall. Complaint ii 9. In January, 2005, Senator Wayne Allard introduced the Marriage Protection Amendment (S.J. Res. 1). On November 9, 2005, the Subcommittee on Constitution, Civil Rights and Property Rights of the Committee on the Judiciary approved the Marrage Protection Amendment for full committee consideration without amendment favorably. 150 Congo Rec. S On information and belief, a vote for cloture in the Senate on S.J. Res. 1 is likely to occur in early,',';: June, Previous versions of a federal constitutional amendment to protect traditional marriage have failed to gamer suffcient support in Congress. Therefore, the progress of SJ. Res. 1 in the Senate this summer is critical. CCL would support any future House or Senate bils that would offer protection to traditional marrage materially similar to that of SJ. Res. 1 or previous permutations of a federal bil to protect traditional marriage. CCL intends to air the advertisement (Exhibit A) beginning on May 10 for the purpose of influencing the votes of Senators Snow and Collns regarding S.J. Res. 1, the Marriage Protection Amendment. CCL intends to begin broadcasting a radio advertisement (Complaint Exhibit A) on May 10 and intends to run the ad throughout May, for the purpose of influencing the votes of Senators ~ Snowe and Collins regarding the federal Marriage Protection Amendment expected this summer. Because the ad mentions Sen. Snowe, who is a candidate in the upcoming primary and general elections, they wil be electioneering communications because they are within the electioneering communication blackout periods before the Maine primary, to be held on June 13, or the general ~./; ;"', i~'.~ election, to be held on November 7. Complaint ii 14. Preliminary Injunction Motion 4

10 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 10 of 34 Because of the timing ofthe vote for cloture and/or other resulting actions by the Senate with regard to the Marrage Protection Amendment CCL intends to run the ad (Complaint Exhibit A) and materially similar ads during the blackout periods if CCL obtains the relief sought herein. The timing of these events is beyond the control of CCL. Complaint ii 13. From May 14 to June 13 (30 days before the primary) and from September 8 to November 7 (60 days before the general election), the current ad (Complaint Exhibit A) and materially similar ads wil become electioneering communications as to Maine Senatorial candidate Olympia Snowe and CCL wil be prohibited from running the ad. Complaint ii 14. CCL' s advertisement wil become electioneering communications from May 14 to June 13, and from September 8 to November 7, because it meets the statutory and regulatory definitions found at 2 V.S.C. 434(f)(3) and 11 C.F.R Complaint ii 23. Specifically, the adverisement at Complaint Exhibit A and any futue advertisements wil be broadcast for a fee on radio. 2 V.S.C. 434(f)(3)(A)(i); 2 C.F.R (b). Complaint ii 24. The advertisements wil be broadcast within 30 days before the Maine primary and/or within 60 days before the general election. 2 V.S.C. 434(f)(3)(A)(i)(I1); 2 C.F.R (a)(2). Complaint ii 25. Like the present ad, these advertisements wil "refer to" "a clearly identified candidate for Federal offce." 2 V.S.C. 434(f)(3)(A)(i)(1); 2 C.F.R (a)(1). Complaint ii 26. The advertisement entitled "Crossroads" (Exhibit A) is a radio broadcast ad to be broadcast for a fee paid by CCL that clearly references federal candidate Sen. Snowe by mentioning her name and asking listeners to contact her (and Sen. Collns) and to urge them to support the ;:.;~ federal Marriage Protection Amendment. Complaint ii 27. Preliminary Injunction Motion 5

11 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 11 of 34 The advertisement at Exhibit A is, and planned future advertisements wil continue to be, i~ "targeted to the relevant electorate," 2 V.S.C. 434(f)(3)(A)(i)(lll); 2 C.F.R (a)(3), meaning that the broadcast ads "can be received by 50,000 or more persons... in the State (Sen. Snowe) seeks to represent." 2 C.F.R (a)(3). Complaint ii 28. The advertisement at Exhibit A wil be, and planned futue advertisements would be, "publicly distributed," i.e., "aired, broadcast, cablecast or otherwise disseminated for a fee through the facilities of a television station, radio station, cable television system or satellte system." 2 C.F.R (a)(3). Complaint ii 29. On May 14, when the electioneering communication blackout period begins, CCL wil be broadcasting a radio ad, Exhibit A, so that it wil be ''publicly distributed" on that date. 11 C.F.R (b )(3)(i). Complaint ii 30. If and when CCL has spent or contracted to spend more than $ 1 0,000 "for the direct costs of producing or airing one or more electioneering communications," 11 C.F.R (a)(l)(i), the public distribution and disbursement amount wil trigger a "disclosure date" requiring it to file a report of its electioneering communication activity on FEC Form 9. Complaint ii 31. CCL intends to comply with all record keeping and reporting requirements for its electioneering communications as set out in the Federal Election Campaign Act ("FECA") and FEC regulations, 2 V.S.C. 434(f); 11 C.F.R , providing accurate disclosure information as to the source and disbursement of funds at the levels at which Congress asserted a disclosure "'.;; interest. Complaint ii 32. CCL is also complying with, and wil continue to comply with, the applicable disclaimer requirements for electioneering communications. 2 V.S.C. 441d; 11 C.F.R. i This may be seen on the advertisement script at Exhibit A, providing disclosure of the fact that CCL is paying for the ad, that they are not authorized by any candidate or Preliminary Injunction Motion 6

12 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 12 of 34 candidate's committee, and providing a phone number where a person hearing or viewing the ad may find contact information for the Senators. Complaint ii 33. CCL does not challenge the reporting and disclaimer requirements for electioneering communications, only the prohibition on using its corporate funds for its grassroots lobbying advertisements. Complaint ii 34. The ad at Exhibit A expresses an opinion on pending Senate legislative activity, which is imminently up for a vote, and urges listeners to contact their Senators and to urge them to vote a certain way in this upcoming vote, so that this ad constitutes bona fide grassroots lobbying..-'l' Complaint ii 35. The ad deals with concrete, imminent, legislative issues, beyond the timing and control of CCL, with which the two incumbent Senators are dealing and must shortly deal with further. Complaint ii 36. The ad refers to both a candidate and a non-candidate and deals with them equally. Complaint ii 37. The ad deals exclusively with the legislative issue. Complaint ii 38. It focuses on the legislative issue in question, not on any candidate. Complaint ii 39. It does not refer to any political party. Complaint ii 40. It deals with an issue with which CCL has a clear and long-held interest. Complaint ii 41. It does not expressly advocate the election or defeat of a clearly identified candidate for federal office. Complaint ii 42. It does not comment on a candidate's character, qualifications, or fitness for offce. Complaint ii 43. It does not mention any upcoming election. Complaint ii 44. The ad is broadcast independent of any candidate or political party in that it is not "made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or their agents, or a political party committee or its agents." 11 c.p.r (a). Complaint ii 45. ~~~ Broadcast advertisements are the most effective form of communication for the present Li,-,..ç. ","\" ',','- Preliminary Injunction Motion 7

13 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 13 of 34 grassroots lobbying campaign, and non-broadcast communications would not provide CCL with suffcient ability to reach the people of Maine with CCL's message. Complaint ii 46. If CCL does not obtain the requested injunctive relief, CCL wil not continue broadcasting the ad at Complaint Exhibit A beginning May 14, because it is prohibited from doing so and because of its fear of enforcement by the FEC. As a result, CCL wil be deprived of its constitutional rights under the First Amendment to the Vnited State Constitution and wil suffer irreparable harm. There is no adequate remedy at law. Complaint ii 47. Four factors govern preliminary injunctions: Argument in considering a plaintiff s request for a preliminary injunction a cour must weigh four factors: (1) whether the plaintiff has a substantial likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable injury were an injunction not granted; (3) whether an injunction would substantially injure other interested parties; and (4) whether the grant of an injunction would further the public interest. See, e.g., Serono Labs., Inc. v. Shalala, 158 F.3d 1313, (D.C. Cir.1998). Al-Fayed v. CIA, 254 F.3d 300, 303 (D.C. Cir. 2001). As seen next, CCL meets these requirements, so preliminary injunctive relief should be granted. I. CCL Has a Substantial Likelihood of Success on the Merits. CCL has a substantial likelihood of success on the merits of this as-applied challenge. In :.~;: McConnell v. FEC, 540 U.S. 93, the Supreme Court upheld the electioneering communication prohibition against a facial challenge. In Wisconsin Right to Life, 126 S.Ct (2006), the Supreme Court explained that as-applied challenges to the electioneering communication prohibition were not resolved or precluded by its holding in McConnell. 126 S.Ct. at This is an as-applied challenge and the constitution requires an exception to the electioneering '. Preliminary Injunction Motion 8

14 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 14 of 34 communication prohibition. Any constitutionally sound exception wil include grassroots lobbying generally or the grassroots lobbying advertisement CCL wishes to broadcast here. A. An Exception for Genuine Grassroots Lobbying Is Constitutionally Required. Should incumbent politicians be able to insulate themselves from lobbying about upcoming votes in Congress through campaign finance regulations? CCL believes not and seeks relief as to (1) its broadcast ad specifically and/or (2) grassroots lobbying generally. 1. The Constitution Specifically Protects Grassroots Lobbying. The people are sovereign. V.S. Const. preamble; Buckley, 424 V.S. at 14 ("In a republic... the people are sovereign...."). In a constitutional republic, government is restricted to the powers expressly granted by the people. V.S. Const. amend. X. The people created legislators to represent them, U.S. Const. art. I, 1; art. IV, 4, and amended the Constitution to require that Senators be "elected by the people." V.S. Const. amend. XVLL. The people mandated Congress not to restrict their rights to speak, associate,) and petition in the exercise of the people's '~~ sovereign right to participate in representative self-government. U.S. Const. amend. 1. The First Amendment is designed '''to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 V.S. 476,484 (1957)). "'(S)peech concerning public affairs is more than self-expression; it is the essence of self-government.'" First National Bank of Boston v. Bellotti, 435 V.S. 765, 777 n.12 (1978) (citation omitted). "It is the tye of speech indispensable to decisionmaking in a democracy, and this is no less tre because the speech :ý~ "(T)he First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas...." Buckley, 424 V.S. at 16 (citations and quotation indicators omitted). Preliminary Inj unction Motion 9

15 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 15 of 34 comes from a corporation rather than an individual." Id. at 777.' While the individuals who make up CCL could engage in electioneering communication, 2 V.S.c. 434(f) (requiring only disclosure if spending exceeds $10,000 in a calendar year), when they form themselves into an effective advocacy group for lobbying, their lobbying through broadcast ads is prohibited for up to 90 days during an election year. Citizen groups formed under the right of association are an essential component of democracy in action. In Buckley, the Supreme Court reaffrmed the constitutional protection for association: "(E)ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association. (Consequently,) the First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas." Buckley, 424 V.S. at 15."(A)ction which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." Jd. at 25.2 This highest level of constitutional protection flows from the essential function of associations in allowing effective participation in our democratic republic by permitting amplified individual speech. Id. at 22. Grassroots lobbying is also protected by rights not considered in McConnell, i.e., the inherent right of the people to participate in self-government and the express First Amendment right to petition, along with a line of cases protecting corporations' right to contact both 2When only an associational interest is involved, as with limits on cash contributions to candidates, the government need only demonstrate that the "contribution regulation was 'closely drawn' to match a 'suffciently important interest.'" Nixon v. Shrink Missouri Gov't PAC, 528 V.S. 377, (2000). But when speech is limited, as here, the statute is subject to strict scrutiny, requiring the government to demonstrate that the regulation is narrowly tailored to advance a compellng governmental interest, Buckley, 424 U.S. at 64-65, the standard employed for expressive association. Roberts v. United States Jaycees, 468 V.S. 609,623 (1984); Boy Scouts of America v. Dale, 530 V.S. 640, (2001). Š? ~~;; Preliminary Injunction Motion 10

16 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 16 of 34 legislators and the public about pending legislative and executive matters. The right of corporations to petition both the legislative and executive branches was recognized in Eastern Railroad Presidents Conference v. Noerr, 365 U.S. 127, 135 (1961). The Supreme Court held that attempts to influence the passage or enforcement of laws were constitutionally protected, essential to representative government, and could not constitute a violation of the Act: In a representative democracy such as this, these (legislative and executive) branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.... The right of petition is one of the freedoms protected by the Bil of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Id. at See also Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) ("the right to petition extends to all departments of the government"). In Bellotti, 435 U.S. 765, the Supreme Court applied the right of petition to corporations which sought "to publicize their views on a proposed constitutional amendment... to be submitted... as a ballot question," id. at 769, and held that this was constitutionally protected. Id. at , Bellotti noted that "the First Amendment protects the right of coiporations to petition legislative and administrative bodies," and concluded that "there hardly can be less reason for allowing corporate views to be presented openly to the people when they are to take action in their sovereign capacity." d. at 791 n.31. The overarching principle of these cases is the right of the people to lobby incumbent ;~:,~ politicians about their conduct in offce.3 Where the express right of petition and the inherent ~:~~ :;"', 3It should be noted that the only reason that the present issue about grassroots lobbying arises is because an incumbent politician chooses to run again. Choosing to run for reelection Preliminary Injunction Motion 11

17 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 17 of 34 necessity of the people's paricipation in self-government are added to the rights of free expression and association, the electioneerig communication prohibition must yield to the weight of constitutional necessity and allow an exception for grassroots lobbying. Recently there was a great debate on reforming Social Security. President Bush made speeches across the nation to generate support so that people would pressure their representatives to support his plan. This was grassroots lobbying. Senators, Representatives, and political party leaders similarly tried to sway public opinion for or against the President's viewpoint. The people, through nonprofit corporate citizen groups, also lobbied.4 This is the work of a vibrant republic, with active involvement of the people. But what if an election were pending within 60 days as this debate occurred?5 All but the people could continue using the most effective means is a benefit to the incumbent, now candidate, because he or she has the possibility (perhaps even the likelihood, given the benefits of incumbency) of being reelected and exercising government power in the future. However, if the electioneering communication provision bans grassroots lobbying, the incumbent's interests are served, but not the people's. In the present case, Sen. Collns could be lobbied, but not Sen. Snowe. So incumbents who choose to run again gain a special exemption from the attempt by the people to influence them through grassroots lobbying. This goes a step beyond anything considered in McConnell. And the problem is compounded because members of Congress often push important legislative matters to the end of the session, which wil often be in the blackout period. 4For example, AARP was grassroots lobbying against the President's plan. See (visited March 7, 2005). The 60 Plus Association was grassroots lobbying for the President's plan. See htt:// (visited March 7, 2005). 5In McConnell, the ACLU provided a summary Chart of "Bils ofinterest to the ACLU in the 106th Congress During the 60 Days Prior to the November General Election." Joint Appendix at , ACLU v. FEC (No ) (consolidated with McConnell) and made the following observations about pre-election legislative activity: (E)lection years are often periods of intense legislative activity, as the district court recognized. During the 2002 election cycle, for instance, legislation creating a new federal Department of Homeland Securty was under consideration in the midst of the pre-election period.... During the fall 2000 elections, dozens of critical legis lative issues were pending in Congress during the 60 day general election blackout ~~: f::~ Preliminary Injunction Motion 12

18 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 18 of 34 to do grassroots lobbying-broadcast media. 2. Grassroots Lobbying Differs From Electioneering. a. There Is a Distinction Between Grassroots Lobbying and Electioneering. The Internal Revenue Code makes a distinction between grassroots lobbying and electioneering. The Internal Revenue Code provides that: (A) "Grass roots lobbying communication" is "any attempt to influence any legislation through an attempt to affect the opinions of the general public or any segment thereof' and has three "required elements:" (1) "refers to specifc legislation," (2) "reflects a view on such legislation," and (3) "encourages the recipient of the communication to take some action with respect to such legislation." ;'" 26 U.S.c (b)(2)(i)-(ii). Advocacy groups such as CCL that are exempt under 26 u.s.c. 50l(c)(4), may spend an unlimited amount of their general treasury funds on lobbying, either "grass roots lobbying" or legislative lobbying.6 Charities exempt under 26 U.S.C. 501 (c )(3), however, may spend only an insubstantial amount on lobbying of any kind. Under the IRC, electioneering is referred to as "political intervention" and is more severely restricted. Nonprofit coiporations under 50l(c)(3) may not "participate in, or intervene in period. See (Chart). Thus, it is not unusual for the ACLU's legislative and issue advocacy to be most intense during an election year, especially in the days leading up to the election. Brief of Appellant at 12-13, ACLUv. FEC (No ) (consolidated with McConnell). A longstanding practice in Congress is to attach riders to appropriation bils, which are considered in the fall prohibition periods. Movement of controversial legislation to prohibition periods may reasonably be expected because less opposition can be generated at such times. 6"Grass roots lobbying" includes "(A) any attempt to influence any legislation through an attempt to affect the opinions of the general public or any segment thereof," while "legislative lobbying" refers to "(B) any attempt to influence any legislation through communication with any member or employee of a legislative body or with any government offcial or employee who may participate in the formulation of the legislation." 11 C.F.R. 491 l(d)(l). ~.,:~ :. I.': ~;;,! Preliminary Injunction Motion 13

19 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 19 of 34 (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public offce," id., while advocacy groups under 50 1 (c)(4) may do so, but may spend only an insubstantial amount on political intervention. Political intervention is dealt with under the term of "exempt fuction," in 26 U.S.c. 527(e)(2), and: means the function of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public offce or offce in a political organization, or the election of Presidential or Vice Presidential electors, whether or not such individual or electors are selected, nominated, elected, or appointed. So the IRC distinguishes between lobbying, which is seeking to influence legisl ition, and political intervention, which is seeking to influence elections.7 7A diverse group of interested parties has recently offered another useful proposal for limning a grassroots lobbying exception to the electioneering communications prohibition. The FEC has published Notice , entitled "Rulemaking Petition: Exception for Certain 'Grassroots Lobbying' Communications From the Definition of 'Electioneering Communication." 71 Fed. Reg The petition was from a broad-spectrum coalition of groups asking for an expedited rulemaking to revise 11 C.F.R (c) to exempt from the definition of "electioneering communication" certain "grassroots lobbying" communications that reflect all of the following principles: 1. The "clearly identified federal candidate" is an incumbent public offceholder; 2. The communication exclusively discusses a particular current legislative or executive branch matter; 3. The communication either (a) calls upon the candidate to take a particular position or action with respect to the matter in his or her incumbent capacity, or (b) calls upon the general public to contact the candidate and urge the candidate to do so; 4. If the communication discusses the candidate's position or record on the matter, it does so only by quoting the candidate's own public statements or reciting the candidate's offcial action, such as a vote, on the matter; 5. The communication does not refer to an election, the candidate's candidacy, or a political party; and 6. The communication does not refer to the candidate's character, qualifications or fitness for offce. :-+" V"~ I.'. While CCL does not believe that this rule goes as far as the U.S. Constitution would extend protection to grassroots lobbying, it provides a useful definition that balances the concerns of all sides and provides a workable test. Preliminary Injunction Motion 14

20 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 20 of 34 While the term "influencing" has not been construed in the IRC context, FECA contains a similar definition of electioneering by defining political "contributions" and "expenditues" as ones made "for the purose of influencing any election for Federal offce." 2 U.S.C. 431 (8)(A)(i) and 431 (9)(A)(i). Because of the vagueness and potential overbreadth of this phrase, the Supreme Court has construed "influence" to require express advocacy of the election or defeat of a clearly identified candidate. Buckley, 424 U.S. at (constring "purpose of influencing," in 431(8) and (9), to require express advocacy), and McConnell, 540 U.S. at See also Buckley, 424 U.S. at (constring "relative to" to require express advocacy) and MCFL, 479 U.S. at (construing "in connection with an election," in the prohibition at 441 b, to require express advocacy). As a result of these constructions, FECA clearly applied only to electioneering and not grassroots lobbying prior to enactment of BCRA. Central to these "express advocacy" holdings, and to the speech protections of the First Amendment generally, was the idea that the speaker must be able to know, based on the meaning of the words he is speaking, which side of the line the speaker is on. Requiring "explicit words" of advocacy of the election or defeat of a candidate does this. Buckley, 424 U.S. at 43. Thus, the speaker is not left to "hedge and trm," wondering how the hearer might interpret the message based on factors external to the communication itself. Id. McConnell endorsed the express advocacy constrction of the language at issue in Buckley and MCFL to avoid vagueness and overbreadth. 540 U.S. at 192. BCRA added the electioneering communication provision, which applies to certain communications that "refer(j to a clearly identified candidate for Federal offce," without any,-:;-. further content requirements. 2 U.S.C. 434(f)(3)(A)(i)(l). McConnell upheld this provision on Preliminary Injunction Motion 15

21 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 21 of 34 its face because it was not vague or overbroad. 540 U.S. at 194. It was not vague because "clearly identifying a candidate" is not vague. Id. (quoting definition). And it was not overbroad because electioneering communications generally were found to be the "functional equivalent of express advocacy." Id. at 206. However, since effective grassroots lobbying requires reference to an incumbent, who may be a candidate, this provision, on its face, encompasses grass roots lobbying, and this case presents the need to distinguish, for purposes of campaign finance laws, between grassroots lobbying and electioneerig. The distinction between grassroots lobbying and electioneering has been discussed in campaign finance cases, but has not yet been definitively decided. Justice Stevens raised the distinction in Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990), where he said that "there is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public offce on the other." Id. at 678 (Stevens, J., concurrg) (emphasis added). Justice Stevens' view seems to have been caried over to his opinion for the Court in McConnell where, in footnote 88, the Cour reiterated that, while government may regulate electioneering, it may not regulate "genuine issue ads" and distinguished McConnell from Bellotti, 435 U.S. 765, and McIntyre v. Ohio Elections Comm 'n, 514 U.S. 334 (1995). McConnell, 540 U.S. at 206 n.88. Justice Kennedy, moreover, argued in McConnell that corporations ought to be able to do both electioneering and lobbyig. 540 U.S. at 764 (Kennedy, J., dissenting).8 8The BCRA prime sponsors saw the difference between electioneering and grassroots lobbying, proposing to the FEC the following exception to the prohibition on electioneering communications: The term "electioneering communication" does not include any communication that: :;"" Preliminary Injunction Motion 16

22 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 22 of 34 b. Genuine Grassroots Lobbying Is Not Sham Issue Advertising. McConnell said that the "constitutionally adequate justification" for upholding the electioneering communication prohibition was that the "sham issue ads" considered there were the "functional equivalent of express advocacy." 540 U.S. at 206. So the issue here is whether grassroots lobbying ads equate to "communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S. at 44. Or is grassroots lobbying a "genuine issue ad" which may not be prohibited. **** (x)(a) Meets all of the following criteria: (i) the communication concerns only a legislative or executive branch matter; (ii) the communication's only reference to the clearly identified federal candidate is a statement urging the public to contact the candidate and ask that he or she take a paricular position on the legislative or executive branch matter; and (iii) the communication refers to the candidate only by use of the term "Your Congressman," "Your Senator," "Your Member of Congress" or a similar reference and does not include the name or likeness of the candidate in any form, including as part of an Internet address; and (iv) the communication contains no reference to any political party. (B) The criteria in Paragraph (A) are not met if the communication includes any reference to: (i) the candidate's record or position on any issue; (ii) the candidate's character, qualifications or fitness for office; or (iii) the candidate's election or candidacy. Detailed Comments of BCRA Sponsors Senator John McCain, Senator Russ Feingold, Representative Christopher Shays, Representative Marty Meehan, Senator Olympia Snowe, and Senator James Jeffords at 10 (copy on fie with authors) ( attached to Letter from Sen. John McCain, Sen. Russell D. Feingold, et al. to Ms. Mai T. Dinh of the FEC (Aug. 23, 2002) (copy on file with authors). Both documents are available at the FEC's website, (select "Electioneering Communications" then "Comments on This Rulemaking"). This proposal by the prime sponsors brings the issue to a very fine point: Assuming a grassroots exception that clearly identifies a candidate, e.g., "Your Senator," is there a constitutional justification for forbidding a citizen group to simply name its Senator? Is the incremental burden on the citizen group narrowly tailored to a compellng interest? Naming the candidate is necessary, as Judge Leon noted from the McConnell record, and is easily justifiable on the basis of the people's exercise of their sovereignty ina republican form of government and their express right to petition, which includes grassroots lobbying.,." 1"': 0' Preliminary Injunction Motion 1 7

23 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 23 of 34 Grassroots lobbying ads are not "sham issue ads" and have nothing to do with elections. They are about legislative action and effective participation by the people in self-government. Lobbying seeks to infuence the exercise of governent power by incumbent offceholders today, while electioneering seeks to influence who wil exercise governmental power in the future. The people's right to influence their representatives on pending legislative matters today is more pressing and potentially more important than who might be their representative next year. Further, if this Court were to accept the proposition that the people may be silenced now on upcoming votes in Congress because it might affect future elections, where would it end? Based on such a proposition, grassroots lobbying could be banned at all times because it might always have a remote effect on elections. There would be no constitutional way to limit such a ban to 30 plus 60 days in a year, or the 80 unbroken days in this case. Throughout the McConnell litigation, grassroots lobbying was perceived as different in kind from electioneering. Judge Leon, the controlling vote in the district cour, clearly thought that grassroots lobbying must be excluded from the "sham issue ad" category. He found that grassroots lobbying did not support or oppose candidates, declaring that his approach to the electioneering communication definition assures that there wil be no real, let alone substantial, deterrent effect on political discourse unrelated to federal elections. Genuine issue advocacy thereby remains exempt from both the backup definition and its attendant disclosure requirements and source restrictions. Similarly, genuine issue advocacy, specifcally of the legislation-centered type, that mentions a federal candidate's name in the context of urging viewers to inform their representatives or senators how to vote on an upcoming bil wil not be regulated by the backup definiton because it does not promote, support, attack, or oppose the election of that candidate. See Findings (providing examples of legislation-centered advertisements that do not promote, support, attack, or oppose the election of a federal candidate). ~~ ; :~~~ :'~:~ Preliminary Injunction Motion 18 ;,.-.

24 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 24 of 34 McConnell, 251 F. Supp. 2d at (Opinion of Judge Leon) (emphasis added except as to "unrelated'). Up to 17% of the ads for which the McConnell district court did fact finding were "genuine issue ads" (in which Judge Leon included grassroots lobbying), with possibly more genuine ads in years with more hot-button legislative issues. Id. at c. Grassroots Lobbying Does Not Implicate McConnell's Concerns. Grassroots lobbying does not implicate McConnell's expressed concerns about "sham issue advocacy." 540 U.S. at 132. McConnell clearly identified what the Court meant by that term, beginning with a section entitled "Issue Advertising." d. at 126. First, the Court noted that such ads "could be aired without disclosing the identity of, or any other information about, their sponsors." Id. In fact, the Court noted, "sponsors of such ads often used misleading names to conceal their identity." Id. at 128 (providing examples), ("concealing their identities," "dubious and misleading names"). Second, the Court noted that "sham issue ads" closely resembled express advocacy ads. Both such ads and express advocacy ads "were used to advocate the election or defeat of clearly identified federal candidates," id. at 126, and McConnell provided an immediate example of what the Court meant by that: "Little difference existed, for example, between an ad that urged viewers to 'vote against Jane Doe' and one that condemned Jane Doe's record on a particular issue before exhorting viewers to 'call Jane Doe and tell her what you think.'" d. at In its discussion of BCRA Title IT, the Court returned to this aspect of "sham issue ads" with this,~-. example:, One striking example is an ad that a group called "Citizens for Reform" sponsored during the 1996 Montana congressional race, in which Bil Yellowtail was a candidate. The ad stated:, '-.,.- Preliminary Injunction Motion 19

25 Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 25 of 34 "Who is Bil Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But 'her nose was not broken.' He talks law and order... but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments-then voted against child support enforcement. Call Bil YellowtaiL. Tell him to support family values." Senate Report 6305 (minority views). The notion that this advertisement was designed purely to discuss the issue of family values strains credulity. 540 U.S. at 193 n.78. The Supreme Court approved BCRA's solution of requiring disclosure and eliminating the use of corporate or labor union money for such ads, except as applied to MCFL- ;':,.: tye corporations, which could not be prohibited from using corporate money for "electioneering communications" because such corporations do not pose the corrption risks represented by business corporations.id. at (creating the first as-applied exception to the prohibition). Grassroots lobbying ads implicate none of these concerns. Because CCL does not challenge the disclaimer and disclosure requirements, there wil be no ads done under misleading names. There will continue to be ful disclosure of all electioneering communications, both as to disclaimers and public reports. The whole system would be transparent. With all this information, it wil then be up to the people to decide how to respond to the call for grassroots lobbying on a particular governmental issue. And to the extent there is a scintila of perceived support or opposition to a candidate, a remote possibility necessitated by the people's sovereign right to participate in representative government, the people, with full disclosure as to the messenger, can make the ultimate judgment. "Government is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves." Bellotti, 435 U.S. at 792 n.3 1 ("The First Amendment rejects the 'highly 'paternalistic' approach...."). Preliminary Injunction Motion 20

26 ;.;-: Case 1:06-cv LFO Document 4 Filed 04/03/2006 Page 26 of 34 And there wil be no ads resembling express advocacy or the "sham ads" that the Court found to be "functional equivalents." Id. at 206. As may be seen in the sample offered by CCL, grassroots lobbying ads focus on passing or defeating pending legislation, not electioneering, and are of no (or only de minimis) value for the purposes of opposing or supporting candidates. But they are essential to self-government. Further, the desirability of a "bright-line rule" does not defeat this as-applied challenge. The Supreme Court has already decided that where constitutional justification is absent, the "desire for a bright-line rule.... hardly constitutes the compellng state interest necessary to justify any infringement on First Amendment freedom." MCFL, 479 U.S. at 263 (emphasis in original).9 d. If There Are Residual Concerns about Using Corporate General Treasury Funds for Grassroots Lobbying, a Segregated Bank Account Could Be Used. The one possibly perceived residual advantage of requiring CCL to do its grassroots lobbying through a PAC is that the use of donated corporate money would be eliminated. ~ In its strict scrutiny analysis, the Court in McConnell relied on the interest in regulating coiporations with respect to candidate elections for the compellng interest prong. 540 U.S. at 205 (both 9In any event, this Court could adopt a bright-line test for grassroots lobbying that is every bit as bright as the exception for MCFL-type coiporations created in MCFL. Id. at The sort of "genuine issue ads" that constitute grassroots lobbying can be neatly cabined without placing any burden on the courts or the FEC. 10CCL does not have a PAC. VCii 16. And in any event, the PAC option would also impose a $5,000 annual contribution limit on donations to the PAC, but contribution limits on organizations engaged in lobbying to support or oppose ballot measures (i.e., legislation) violates First Amendment rights of expression and association. Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). Given the extremely low likelihood that genuine grassroots lobbying would have a cognizable effect on an election, and given the offsetting selfgovernance interest of the people, there is no constitutional justification for contribution limits in this context. ~(i, I_:; r;~~ Preliminary Injunction Motion 21